New York State Issues “Final” Model Sexual Harassment Policy and Training Program and Related Guidance

Summary

Coming in just under the wire, the New York State Department of Labor has issued in final form the model sexual harassment policy and training materials which can be adopted by employers to comply with their obligations under New York state’s recent update to its sexual harassment laws. Effective October 9, 2018, all employers in New York state must (1) adopt a sexual harassment prevention policy and distribute it to their employees, and (2) conduct annual anti-sexual harassment training for all employees. Employers have a full year, until October 9, 2019, to conduct initial training compliant with state requirements, and training must then be conducted annually thereafter for each employee. Employers may use the state’s model policy and training materials or develop their own policy and training materials which meet the minimum standards established by the state. A discussion of these and other requirements under New York state law follows below, along with a review of similar requirements recently passed by New York City.

Background

On April 12, 2018, Governor Cuomo signed the New York state budget bill, which included significant new anti-sexual harassment laws. The laws included new requirements for employers to adopt sexual harassment policies and provide them to their employees and to provide annual, interactive sexual harassment prevention training to all employees. As directed by the new laws, the New York state Department of Labor (Department), in consultation with the New York State Division of Human Rights (NYSDHR), has issued a model sexual harassment policy (Model Policy[1]) and model training program, following minimum standards established by the new laws. Employers can adopt these models or develop their own policies and training programs which comply with state requirements. The Department also issued other related materials, including a wide-ranging set of Frequently Asked Questions (FAQs) which cover the policy, training and other aspects of the new laws.

Sexual Harassment Policy

What Does the Model Policy Contain? The Model Policy is an eight-page template, with highlighted sections that can be customized with the employer’s name and the name of the individual or office at the employer responsible for handling harassment complaints. It contains familiar elements of sexual harassment policies, such as an explanation and examples of sexual harassment, a complaint procedure and a prohibition on retaliation. The Model Policy also contains some new elements designed to comply with the new statutory requirements, including an explanation that the policy and the law protect not only employees but also non-employees in the workplace, such as independent contractors and contract workers, and that harassers can include clients, customers and visitors. The Model Policy provides a highly detailed complaint and investigation procedure. It also provides a detailed explanation of the procedure for filing claims with the NYSDHR, Equal Employment Opportunity Commission and in state court, as well as the option of going to a local agency or the police.

How Closely Does an Employer’s Own Policy Need to Follow the Model Policy? While the legislation stated that employers could establish their own policy which “equals or exceeds the minimum standards provided by such model,” suggesting that the Model Policy would itself establish minimum requirements, the Department’s Minimum Standards for Sexual Harassment Prevention Policies, setting forth requirements for employers' own policies, merely repeats the same basic statutory requirements that were established as the basis for the Model Policy. The most helpful general guidance is in the Department’s Sexual Harassment Prevention Employer Toolkit (Employer Toolkit), which states that “employers may adopt a similar policy that meets or exceeds the minimum standards of the model policy” (emphasis added) and that employers may modify the Model Policy “to reflect the work of your organization and industry specific scenarios or best practices.” The FAQs also expressly clarify that if an employer’s established investigative procedures are similar, but not identical, to those provided in the model, employers can deviate from the specific requirements in the model and remain compliant with the law, and that the employer’s actual investigative procedures should be outlined in the policy.

Who Must Receive the Policy? Employers must provide their sexual harassment policy to all employees. While the FAQs acknowledge that employers are not required to provide the policy to non-employees, employers are encouraged to provide the policy and training to anyone providing services in the workplace.

How Should the Policy Be Provided? The Employer Toolkit indicates that the sexual harassment policy may be provided in writing or electronically, such as by email. The FAQs indicate that if a copy is made available on a work computer, workers must be able to print a copy for their own records. While not required, the FAQs and Employer Toolkit encourage employers to post a copy of the policy in a highly visible area in the workplace and keep signed acknowledgements from employees that they have read it.

Complaint Form

Inclusion of a complaint form is one of the statutory requirements of a compliant sexual harassment policy. The Department has issued a Model Complaint Form, which is a template with highlighted sections that can be customized by employers. The last page of the Model Complaint Form is a set of brief instructions for the employer on how to conduct an investigation, and it includes the statement that employers may use email to notify the complainant and the individual(s) against whom the complaint was made of the outcome of the investigation. The FAQs clarify that a sexual harassment policy need not include a complaint form in its entirety, so long as the policy identifies where it can be obtained.

Sexual Harassment Training

When Must Training Take Place? Effective as of October 9, 2018, all employers in New York state have one year (until October 9, 2019) to provide sexual harassment prevention training to all employees who work in the state. Training must then be provided annually thereafter. Employers are encouraged to provide new employees with training “as soon as possible” after hire. If a new employee can verify having received compliant training within the past year from a prior employer or through a temporary help firm, the employer can choose to deem the requirement satisfied. However, employers should train the employee on any nuances and processes specific to the employer or the employer’s industry.

Who Must Be Trained? The FAQs clarify that training must be provided to all employees, regardless of immigration status, including part-time, seasonal and temporary workers and individuals who may be based outside the state but work a portion of their time in the state.

What Must the Training Contain? The statutory requirements for training, as set forth in the Minimum Standards for Sexual Harassment Prevention Training, include familiar elements of training programs, such as an explanation of sexual harassment and examples of sexual harassment. The statute now specifically requires training programs to be interactive and include information on the following: the federal and state statutory provisions concerning sexual harassment and remedies available to victims; employees’ rights of redress and all available forums for adjudicating complaints; and conduct by supervisors and any additional responsibilities for such supervisors. The FAQs clarify that any sections of the model training material that are not expressly required under the law are not mandatory but are strongly recommended.

What Do the Model Training Materials Contain? The model training program materials consist of several documents: PowerPoint slides for the model training (Model Training Slides), PowerPoint slides for model training case studies (Model Case Studies Slides) and a 23-page document with instructions for employers and a script (Model Training Instructions and Script) to accompany the Model Training Slides and Model Case Studies Slides. The Model Training Instructions and Script indicate that there will also be a video presentation (Video), viewable online and for download, and FAQs (Training FAQs), available online to accompany the training, answering additional questions that arise. The Video and Training FAQs have not yet been posted to the state’s website.

How Does the Training Need to Be Provided? The Model Training Instructions and Script indicate that training can be presented to employees individually or in groups and can be conducted in a variety of formats: in person, by phone, online, by webinar or by recorded presentation. The training is required by statute to be “interactive,” which the FAQs note can include: questions at the end of a web-based program where employees must select the right answer; the opportunity for employees to ask questions, including online, and receive answers either immediately or in a timely manner; a live trainer asking questions of employees; and feedback surveys for employees to turn in after they have completed web-based or in-person training. As an example, the Employer Toolkit states that training requirements can be met by having employees watch the Video and then providing employees with a feedback mechanism. The FAQs warn that merely requiring employees to watch a video or read a document without any feedback mechanism or interaction would not be considered interactive.

Are There Minimum Hours Requirements for Training? Or Special Training Requirements for Supervisors? The FAQs indicate that there are no minimum training hours required of employees, so long as the training meets minimum standards. There is also no special training requirement for supervisors beyond what must be provided to all employees. The statute requires that training (for all employees) address conduct by supervisors and the additional responsibilities of supervisors, which the model training materials note include mandatory reporting requirements.

New York City Sexual Harassment Laws

As a reminder, in addition to complying with state laws, employers in New York City must also comply with the Stop Sexual Harassment in New York City Act (NYC Law), a legislation package signed into law by Mayor de Blasio on May 9, 2018.

Expanded Coverage. Effective as of May 9, 2018, the NYC Law revised the New York City Human Rights Law with respect to sexual harassment to cover employers with one employee (which is now consistent with New York state law). So all employers in New York City must comply with the new city law.

Extended Statute of Limitations. Effective as of May 9, 2018, the NYC Law extended the statute of limitations for filing a complaint of sexual harassment with the New York City Commission on Human Rights (NYCCHR). Instead of one year, employees now have three years to file a charge.

Required Fact Sheet and Posting. Effective as of September 6, 2018, employers must provide individual employees upon hire with a copy of the Stop Sexual Harassment Act Fact Sheet (Fact Sheet), which may also be included in a handbook. The Stop Sexual Harassment Act Notice (Notice) must be posted by all employers.

Required Training. Effective April 1, 2019, employers with at least 15 employees are required to provide interactive anti-sexual harassment training annually to all employees (including interns, managers and supervisors) who work at least 80 hours in New York City. The NYCCHR will issue model training materials which can be adopted by employers to meet their obligations under city law.

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If you have any questions or need assistance implementing compliance with these laws, please contact Albert J. Solecki, Jr., Eric Roth, Jeehye Park or any other Goodwin employment law specialist.